The EPA Administrator may designate a substance as hazardous if, when released into the environment, it may present substantial danger to the public health or welfare or the environment. PFAS are water soluble and over time have seeped into surface soils, leached into groundwater and surface water, and contaminated drinking water. PFAS are now found in rivers, lakes, fish, and wildlife. That scientific reality is why the EPA is moving in this direction. 

This proposed Superfund coverage of this new class of chemicals is significant. CERLCA imposes liability on the following “potentially responsible parties” (PRPs) for the actual or threatened release of any hazardous substances and the cleanup costs of any release. 

Release is broadly defined as “spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.” 42 U.S.C. § 9601(22).

The class of PRPs includes a long list: current owners and operators of a facility, past owners and operators of a facility at the time hazardous wastes were disposed, generators, parties that arranged for the disposal or transport of the hazardous substances, and transporters of hazardous waste that selected the site where the hazardous substances were brought. 42 U.S.C. § 9607(a). 

If PFOA and PFOS are designated under CERLCA, as appears likely to happen, any person in charge of a facility would be required to report releases of one pound or greater of PFOA and PFOS within a 24-hour period to the National Reporting Center in accordance with 40 C.F.R. 302. 

Section 304 of the Emergency Planning and Community Right-to-Know Act also requires facility owners or operators to immediately notify their community emergency coordinator or local emergency planning committee of a release. Upon notification, the Federal government will evaluate the need for a response in accordance with the National Oil Hazardous Substance Contingency Plan.

Because current owners and operators of facilities can be found liable under CERCLA, that means even passive receivers of PFAS can be found liable. It is expected that this new designation by EPA would affect PFAS manufacturers and processors, manufacturers of products containing PFAS, downstream product manufacturers, users of PFAS products, and waste management and wastewater treatment facilities. 

A small sample of potentially affected businesses includes car washes, carpet manufacturers, airports, landfills, firefighting foam manufacturers, municipal fire departments, paper and textiles mills, wastewater treatments plants, waste management services, water utilities, and many more. 

An increasing number of states have their own PFAS policies or regulations with which the listed manufacturers and users need to comply. Designation of PFAS under CERLCA may introduce a uniform and more predicable nationwide application of PFAS regulations and enforcement, or at least a set of minimum standards and specifications on which states may improve. We shall see. 

Designation of PFOA and PFOS under CERCLA certainly will affect real estate transactions. Environmental due diligence, at some level, should always be a part of any real estate transaction, certainly for industrial, commercial, agricultural and larger residential developments. 

Any buyer, lender, investor, or tenant always is well advised to determine the current and past uses and owners of a property to establish whether a release of a hazardous substance could have occurred. This should include CERCLA, TSCA, RCRA and counterpart state regulatory laws. 

Large commercial developers routinely use the American Society of Testing and Materials International Standard E1527-13 Phase I Environmental Site Assessment (“Phase 1”) process in order to identity any history of any potential contaminants on the site. This has been called the “paperwork review.” 

By using this standard, purchasers of properties can satisfy one of the requirements to qualify as an innocent landowner or bona fide prospective purchaser under CERCLA and limit their liability under CERCLA. 

As of now (and until PFAS are listed as hazardous substances under CERCLA), Phase 1 does not include PFAS in its due diligence standards and developers would not be protected from liability for PFAS even if they complied with all the standards set out in Phase 1. Until the rule is finalized, developers may be wary of redevelopment projects. 

The addition of PFOA and PFOS under CERCLA will bring new parties to existing Superfund sites since the EPA is authorized to bring in new liable parties.  Existing parties also are able to make contribution claims against those new liable or potentially liable parties. 

This addition will also expand the geographic scope of current remediation projects and reopen old Superfund sites since they likely will contain PFAS. Many parties that have resolved their CERCLA liability via settlement agreement have reopener clauses in their contracts that may subject them to additional liability. 

The new designation will enable the EPA and states to identify more Superfund sites that are not currently designated as such. These practical implications will increase the time, cost, complexity, and uncertainty of the remediation process.

One way state and municipalities have been reckoning with PFAS is through litigation. Multidistrict litigation consisting of hundreds of lawsuits brought by state attorneys general, municipalities, and private and public water districts is ongoing.  State and local officials are using litigation as a tool to punish wrongdoers and obtain large sums of money to spearhead testing and cleanup efforts. 

On May 25, 2022, Massachusetts Attorney General Maura Healey joined the fight and sued 13 manufacturers of PFAS for knowingly contaminating drinking water sources, groundwater, and other natural resources. The deadline to comment on this EPA proposed rule is November 7, 2022 and may be accessed here >>>